Today EFF filed a reply brief in its FOIA lawsuit seeking records from the FBI, DOJ and DEA that would justify the Administration’s need to expand federal surveillance laws like the Communications Assistance to Law Enforcement Act (CALEA). The proposed expansion would require communications providers like Skype, Facebook, Blackberry and Twitter to build wiretapping capabilities right into their systems, and although we know Congress intends to turn to this issue early this year, FBI, DEA and DOJ have argued they can’t give us all the documents we asked for until the summer of 2012. To force the government to turn over documents on a timeline that would actually allow them to influence the debate, we filed a motion for partial summary judgment, asking the court to order the agencies to produce documents within 10 days.

This lawsuit is based on two separate but related FOIA requests, one of which has now been pending with the FBI for almost two years. The earlier request seeks documents on the FBI’s “Going Dark Program,” a program intended to bolster the Bureau’s electronic communications intercept capabilities that could be strengthened by new legislation. The second request, now pending for four months, seeks materials related to a legislative expansion to CALEA, including evidence of any limitations of current surveillance technologies and records of communications between DOJ agencies and technology companies, trade organizations and Congress about potential legislation.

Although it’s clear the agencies in this suit have been actively lobbying the Administration, Congress, and communications providers about expanding CALEA (see New York Times articles here, here, and here and FBI Director Robert Mueller’s statement here), and also clear that Congress intends to focus on this issue in 2011, the government told the court that, without actual legislation on the books, there can be no urgency to our FOIA request. Amazingly, the government also proposed a production schedule that would mean EFF would not receive the entire anticipated disclosure until August 1, 2012 — nearly two years after our second FOIA request. By that time, there’s no way the documents could have anything more than historical relevance, much less influence the debate on legislation.

As our FOIA requests made clear, the public needs to see these documents now. While CALEA currently requires phone, broadband and VOIP providers to build wiretapping capabilities into their systems, the law does not apply to other communications providers like Facebook, Google, Blackberry, Twitter and Skype. The expansions to CALEA the Administration is reportedly seeking would change that – and without any clear evidence that law enforcement agents need this to be able to do their jobs. As we tried to make clear when Congress last expanded CALEA in 2005, federal laws like the Wiretap Act currently allow law enforcement to conduct surveillance with the proper legal processes in place. But just because law enforcement has the legal ability to do this sometimes doesn’t mean agents should have the physical capabilities to do this all the time.

Lawmakers have so far rejected requiring back doors to electronic communications because they are ineffective, cause security vulnerabilities, and hurt American business -- on top of the damage they would do to Americans’ privacy and free speech rights (read more here). Any discussion about the need to mandate building surveillance capabilities directly into technologies must start with these critical records.

We’ll post again here when we either have a ruling from the court or receive documents from the government.

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